FOR PUBLICATIONcdn.ca9.uscourts.gov/datastore/opinions/2010/06/11/09...2010/06/11 · The district court held that FRE 807, the residual exception, did not apply. The court observed

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-10079Plaintiff-Appellant,D.C. No.v. 3:07-cr-00732-SI-1

BARRY LAMAR BONDS, OPINIONDefendant-Appellee. Appeal from the United States District Court

for the Northern District of CaliforniaSusan Illston, District Judge, Presiding

Argued and SubmittedSeptember 17, 2009—San Francisco, California

Filed June 11, 2010

Before: Mary M. Schroeder, Stephen Reinhardt andCarlos T. Bea, Circuit Judges.

Opinion by Judge Schroeder;Dissent by Judge Bea

8553

COUNSEL

Barbara Valliere, San Francisco, California, for the plaintiff-appellant.

Dennis Riordan, San Francisco, California, for the defendant-appellee.

8557UNITED STATES v. BONDS

OPINION

SCHROEDER, Circuit Judge:

In 2001, Barry Bonds hit 73 home runs for the San Fran-cisco Giants. Also in 2001, as well as in prior and succeedingyears, BALCO Laboratories, Inc. in San Francisco recorded,under the name “Barry Bonds,” positive results of urine andblood tests for performance enhancing drugs. In 2003, Bondsswore under oath he had not taken performance enhancingdrugs, so the government is now prosecuting him for perjury.But to succeed it must prove the tested samples BALCOrecorded actually came from Barry Bonds. Hence, this appeal.

The government tried to prove the source of the sampleswith the indisputably admissible testimony of a trainer, GregAnderson, that Barry Bonds identified the samples as his ownbefore giving them to Anderson, who took them to BALCOfor testing. Anderson refused to testify, however, and hasbeen jailed for contempt of court.

The government then went to Plan B, which was to offerthe testimony of the BALCO employee, James Valente, towhom Anderson gave the samples. Valente would testifyAnderson brought the samples to the lab and said they camefrom Barry Bonds. But the district court ruled this was hear-say that could not be admitted to establish the truth of whatJames Valente was told. See Fed. R. Evid. 802. Accordinglywe have this interlocutory appeal by the United States seekingto establish that the Anderson statements fall within someexception to the hearsay rule.

The district court also ruled that because Anderson’s state-ments were inadmissible, log sheets on which BALCOrecorded the results of the testing under Bonds’ name, werealso inadmissible to prove the samples were Bonds’. The gov-ernment challenges that ruling as well.

8558 UNITED STATES v. BONDS

We have jurisdiction pursuant to 18 U.S.C. § 3731 whichauthorizes government interlocutory appeals of adverse evi-dentiary rulings. We review for abuse of discretion andaffirm.

I. Background

BALCO Laboratories, Inc. was a California corporationthat engaged in blood and urine analysis, and was located inSan Francisco. In 2003, the IRS began to investigate BALCO,suspecting the company of first, distributing illegal perfor-mance enhancing drugs to athletes, and then, laundering theproceeds. In September 2003, the government raided BALCOand discovered evidence which it contends linked both trainerGreg Anderson (“Anderson”) and BALCO to numerous pro-fessional athletes. One of these athletes was professionalbaseball player and Defendant Barry Bonds (“Bonds”). Thegovernment also found blood and urine test records which, itasserts, established that Bonds tested positive for steroids.

On multiple occasions Anderson took blood and urine sam-ples to BALCO Director of Operations James Valente(“Valente”) and identified them as having come from Bonds.According to Valente, when he received a urine sample fromBonds, he would assign the sample a code number in a logbook, and then send the sample to Quest Diagnostics(“Quest”) for analysis. Quest would send the result back toBALCO. BALCO would then record the result next to thecode number in the log book. Also, according to Valente,BALCO would send Bonds’ blood samples to LabOne & Spe-cialty Lab (“LabOne”) for analysis. The government seizedthe log sheets from BALCO, along with the lab test results.

Before the grand jury in the probe of BALCO, the ques-tioning by the government focused extensively on the natureof Bonds’ relationship with Anderson. Bonds testified that hehad known Anderson since grade school, although the twohad lost touch between high school and 1998. In 1998, Ander-


son started working out with Bonds and aiding him with hisweight training. Anderson also provided Bonds with sub-stances including “vitamins and protein shakes,” “flax seedoil,” and a “cream.” According to the government, some or allof these items contained steroids. Anderson provided all ofthese items at no cost to Bonds. Bonds testified he took what-ever supplements and creams Anderson gave him withoutquestion because he trusted Anderson as his friend. (“I wouldtrust that he wouldn’t do anything to hurt me.”). Bonds statedthat he did not believe anything Anderson provided him con-tained steroids. He specifically denied Anderson ever told himthe cream was actually a steroid cream.

With respect to blood sample testing, Bonds testified beforethe grand jury that Anderson asked Bonds to provide bloodsamples on five or six occasions, telling Bonds he would takethe blood to BALCO to determine any nutritional deficienciesin his body. Bonds said that he would only allow his own“personal doctor” to take the blood for the samples.

Bonds also testified he provided around four urine samplesto Anderson and he believed the urine samples were alsogoing to be used to analyze his nutrition. Anderson also deliv-ered these samples to Valente at BALCO for analysis. (“Gregwent [to BALCO] and dealt with it.”). Bonds did not questionAnderson about this process because they “were friends.”

The government showed Bonds numerous results of bloodand urine tests but Bonds denied ever having seen thembefore. Rather Bonds contended that Anderson verbally andinformally relayed the results of any tests to him. Bondsstated that Anderson told him that he tested negative for ste-roids. (“Greg just said: “You’re — you’re negative.”). Bondstrusted what Anderson told him. (“He told me everything’sokay. I didn’t think anything about it.”).

With respect to the relationship between Bonds and Ander-son, Bonds admitted to paying Anderson $15,000 a year for


training. Bonds stated that this payment was not formallyagreed to. Rather, Bonds contended that he “felt guilty” and“at least [wanted to give Anderson] something.” (“Greg hasnever asked me for a penny.”). Bonds had several trainers andconsidered some of the trainers employees, but consideredAnderson a friend whom he paid for his help. (“Greg is myfriend. . . . Friend, but I’m paying you.”). Bonds made hispayments to Anderson in lump sums. In 2001, the year he setthe Major League Baseball single season home run record,Bonds also provided Anderson, along with other friends andassociates, a “gift” of $20,000. Bonds spent considerable timewith Anderson in San Francisco but Bonds noted that Ander-son only visited during weekends during spring training.

On February 12, 2004, a grand jury indicted Anderson andother BALCO figures for their illegal steroid distribution.Anderson pled guilty to these charges and admitted to distrib-uting performance enhancing drugs to professional athletes.The government also commenced an investigation intowhether Bonds committed perjury by denying steroid use dur-ing his grand jury testimony. Anderson, since that time, hascontinuously refused to testify against Bonds or in any wayaid the government in this investigation and has spent timeimprisoned for contempt.

II. Procedural History of this Appeal

On December 4, 2008, the government indicted Bonds onten counts of making false statements during his grand jurytestimony and one count of obstruction of justice. Theyincluded charges that Bonds lied when he 1) denied takingsteroids and other performance enhancing drugs, 2) deniedreceiving steroids from Anderson, 3) misstated the time frameof when he received supplements from Anderson.

The next month, in January 2009, Bonds filed a motion inlimine to exclude numerous pieces of evidence the govern-ment contends link Bonds to steroids. As relevant to this


appeal Bonds moved to exclude two principal categories ofevidence: the laboratory blood and urine test results, and theBALCO log sheets of test results.

When the government sought to introduce as businessrecords the lab test results from Quest (urine) and LabOne(blood) seized from BALCO, Anderson’s refusal to testifycreated an obstacle. The essence of the government’s identifi-cation proof was Anderson’s identification of the samples toValente as Bonds’. The government wanted to introduceValente’s testimony that Anderson told him for each samplethat “This blood/urine comes from Barry Bonds,” in order toprovide the link to Bonds. Because the government wasattempting to use Anderson’s out of court statements to provethe truth of what they contained, Bonds argued that Ander-son’s statements were inadmissible hearsay and that the labresults could not be authenticated as Bonds’ in that manner.See Fed. R. Evid. (“FRE”) 802 (“Hearsay is not admissibleexcept as provided by these rules or by other rules prescribedby the Supreme Court pursuant to statutory authority or byAct of Congress.”).

The government sought to fit the statements within a hear-say exception. In its response to the defense motion in liminethe government countered that Anderson’s statements wereadmissible as statements against Anderson’s penal interest(FRE 804(b)(3)), as statements of a co-conspirator (FRE801(d)(2)(E)), and, alternatively, as admissible under theresidual exception (FRE 807). At oral argument and in sup-plemental briefing before the district court, the governmentadvanced two additional rationales as to how the court couldadmit the blood and urine samples: as statements authorizedby a party (Anderson’s statements authorized by Bonds)under FRE 801(d)(2)(C), or as statements of an agent (Ander-son as Bonds’ agent) under FRE 801(d)(2)(D). The court heldthat the government, as the proponent of hearsay, had failedto prove by a preponderance of the evidence that any of theexceptions or exemptions applied. See Bourjaily v. U.S., 483


U.S. 171, 175 (1987) (holding that proponent of hearsay mustprove exception or exemption by preponderance of the evi-dence).

The government also sought to introduce the log sheetsfrom BALCO containing the Quest lab test results showingBonds’ urine testing positive for steroids, arguing that the logsheets were admissible as non-hearsay business records, or asstatements of a conspirator, as statements against penal inter-est, or admissible under the residual exception to hearsay. Thedistrict court ruled the log sheets were also inadmissible toestablish the samples tested were Bonds’. This appeal fol-lowed. On appeal, the government argues only that FRE 807,the residual exception, or FRE 801’s exceptions for autho-rized statements (d)(2)(C) or for statements by an agent(d)(2)(D) apply.

III. Discussion

A. Admissibility of Anderson’s Statements Under theResidual Exception to the Hearsay Rule

The district court held that FRE 807, the residual exception,did not apply. The court observed that it was designed for“exceptional circumstances.” See Fong v. American Airlines,626 F.2d 759, 763 (9th Cir. 1980). FRE 807, previously FRE803(24), provides:

A statement specifically not covered by Rule 803 or804 but having equivalent circumstantial guaranteesof trustworthiness, is not excluded by the hearsayrule, if the court determines that (A) the statement isoffered evidence of a material fact; (B) the statementis more probative on the point for which it is offeredthan any other evidence which the proponent canprocure through reasonable efforts; and (C) the gen-eral purposes of these rules and the interests of jus-


tice will be served admission of the statement intoevidence.

The court did not find Anderson’s refusal to testify anexceptional circumstance because the effect was to make himan unavailable declarant, and FRE 804 already defines an“unavailable” declarant and lists exceptions to inadmissabilitythat the government does not contend are applicable in thiscase.

[1] FRE 807 involves discretion. It exists to provide judgesa “fair degree of latitude” and “flexibility” to admit state-ments that would otherwise be hearsay. See U.S. v. Valdez-Soto, 31 F.3d 1467, 1471 (9th Cir. 1994).

[2] Our sister circuits have also given district courts widediscretion in the application of FRE 807, whether it be toadmit or exclude evidence. See, e.g., U.S. v. Hughes, 535 F.3d880, 882-83 (8th Cir. 2008) (upholding district court decisionnot to admit evidence under FRE 807); FTC v. Figgie Intern.Inc., 994 F.2d 595, 608-09 (9th Cir. 1993) (upholding admis-sion under residual exception even where trial court failedadequately to explain reasoning). Our research has disclosedonly one instance where a circuit court reversed a districtcourt to require admission of a statement under FRE 807. SeeU.S. v. Sanchez-Lima, 161 F.3d 545, 547-48 (9th Cir. 1998).However, the hearsay statements in that case were videotapedand under oath, and thus had indicators of trustworthiness thatAnderson’s statements do not. See id. More important, the cir-cumstances were “exceptional” because the government haddeported the witnesses, so the statements remained the onlyway the defendants could present their defense. Therefore, thegovernment is asking this Court to take an unprecedented stepin using 807 to admit the statements of a declarant who haschosen not to testify and whose statements lack significantindicators of trustworthiness.

The government argues that the district court adopted animproperly narrow view of FRE 807 by not taking into


account that Anderson’s statements “almost” fell within sev-eral other hearsay exceptions. It also asserts the court did notgive enough weight to Anderson’s unavailability.

[3] The government contends that Anderson’s statements“almost” met several other hearsay exceptions, and for thatreason the district court erred in not admitting them underFRE 807. Specifically the government points out that Ander-son’s statements came close to qualifying as statementsagainst his penal interest and statements of a coconspirator.The government relies on Valdez-Soto. In upholding theadmission of out of court statements under the 807 exceptionin Valdez-Soto, we said that where a statement “almost fit[s]”into other hearsay exceptions, the circumstance cuts in favorof admissibility under the residual exception. See 31 F.3d at1471. We did not, however, hold the factor was determina-tive, only that it supported the district court’s application ofFRE 807 in that case to admit the evidence. In this case, eventhough this was a “near miss” it was nevertheless a “miss”that may have permitted, but did not alone compel the trialcourt to admit Anderson’s statements under FRE 807.

The government next suggests that Anderson’s unavaila-bility is “exactly the type of scenario” FRE 807 was intendedto remedy, but cites no authority supporting the proposition.It argues the district court misunderstood the rule and appliedit too narrowly. The district court, however, correctly notedthat courts use FRE 807 only in exceptional circumstancesand found this situation unexceptional because it involvesstatements of an unavailable witness like those FRE 804excludes, with limited exceptions here not applicable.

[4] In addition, FRE 807 requires that the admissible state-ments have trustworthiness. The district court concludedAnderson’s statements were untrustworthy, in major partbecause Valente admitted that he once mislabeled a samplewhen Anderson asked him to do so. To the extent the govern-ment contends that the district court improperly focused on


Valente’s trustworthiness instead of on the trustworthiness ofAnderson’s statements, the government misinterprets the dis-trict court’s opinion. The district court finding properlyfocused on the record of untrustworthiness of the out of courtdeclarant, Anderson, as required under the rule. There wassupport for its conclusion that Anderson’s statements aboutthe source of samples were not trustworthy.

B. Admissibility of Anderson’s Statements Under801(d)(2)(C) and (D).

[5] FRE 801(d)(2)(C) provides that a statement is a non-hearsay party admission if it “is offered against a party and is. . . a statement by a person authorized by the [defendant] tomake a statement concerning the subject.” FRE 801(d)(2)(D)provides that a statement is not hearsay if it “is offered againsta party and is . . . a statement by the party’s agent or servantconcerning a matter within the scope of the agency oremployment, made during the existence of the relationship.”Subsection (C) thus requires the declarant to have specificauthority from a party to make a statement concerning a par-ticular subject. Subsection (D) authorizes admission of anystatement against a party, but only provided it is made withinthe scope of an employment or agency relationship.

As a threshold matter, Bonds contends that the governmentdid not preserve its arguments under either subsection,because the government failed to timely raise the issues in itsresponse to the defense motion in limine to exclude the state-ments; the government raised them for the first time in oralargument on the motion in the district court, and then filed asupplemental brief. Bonds cites U.S. v. Chang, 207 F.3d 1169(9th Cir. 2000), but Chang does not support Bonds’ position.Chang states that if “a party fails to state the specific groundsupon which evidence is admissible, the issue is not preservedfor review, and the court will review only for plain error.” 207F.3d at 1176 (citation omitted). Chang would bar a party fromarguing for admissibility an appeal when it gave no justifica-


tion under the rules to support admissibility in the districtcourt. Chang further suggests a party can not contend onappeal that admissibility would have been proper under a dif-ferent rule from that advocated in the district court. In thiscase, however, the government argued the points and the dis-trict court allowed the government and Bonds to file supple-mental briefs to address the new contentions. They are notraised for the first time on appeal. Although the government’sbrief contained little factual information explaining the extentand nature of Bonds’ relationship with Anderson, and thatdoubtless contributed to the district court’s adverse ruling onthe merits, the government preserved the right to appeal thedistrict court’s ruling that Subsections C and D did not apply.

We turn first to the government’s challenge to the districtcourt ruling that the statements should not be admitted underSubsection (C) because Bonds did not specifically authorizeAnderson to make the statements. Both parties agree that ifthe samples were Bonds’, he could have authorized Andersonto make the statements. The question is whether the districtcourt was within its discretion in ruling the record failed toestablish sufficiently that he did.

[6] The government acknowledges it cannot establish thatBonds explicitly authorized Anderson to identify the samplesas his. Bonds was never asked the question during his grandjury testimony and Anderson, of course, is unavailable. Thegovernment’s position is, in essence, that by authorizingAnderson to act as one of his trainers, Bonds implicitly autho-rized Anderson to speak to the lab on his behalf. The conclu-sion does not follow from the premise.

[7] The district court correctly observed that certain rela-tionships do imply an authority to speak on certain occasions.See e.g., Hanson v. Waller, 888 F.2d 806, 814 (11th Cir.1989) (stating that lawyers have implied authority to speakoutside of court on matters related to the litigation). Athletictrainers, however, as the district court went on to observe, do


not traditionally have such any such implicit authorization tospeak. The government suggests that by allowing Anderson tohave the samples tested, Bonds impliedly authorized Ander-son to identify them to BALCO, citing United States v. Iaco-netti, 540 F.2d 574, 576-77 (2d Cir. 1976). In Iaconetti, thedefendant demanded a bribe from the president of a company.Id. The court held that by demanding the bribe, the defendanthad provided implicit authorization for the president to dis-cuss the bribe with his business partner. Id. Here, Bonds pro-vided the samples after Anderson asked for them and thusIaconetti does not apply. There is no evidence of discussionsabout how Anderson was to deal with the samples. The dis-trict court could have quite reasonably concluded that Bondswas accommodating the wishes of a friend rather than provid-ing Anderson with “the authority to speak” on his behalf.

We cannot agree with the dissent’s assertion that the natureof the task of testing blood and urine samples implies that theperson who makes the necessary arrangements for the testingand delivers the samples is authorized to identify the samples’origin. Even assuming that Bonds allowed Anderson to havehis blood and urine tested in order to obtain medical informa-tion rather than to accommodate Anderson’s wishes, it wasnot necessary for Anderson to reveal Bonds’ identity toaccomplish that purpose. The samples could easily have beenidentified by a number or a code word. Indeed, there are manylegitimate reasons to perform medical testing anonymously.The dissent’s conclusion that Anderson was impliedly autho-rized to identify Bonds depends on the assumption that identi-fying Bonds by name was the only way to ensure accurate testresults. Because we disagree with that assumption, we do notfind the dissent’s reasoning persuasive.

The district court also expressly found that the governmenthad failed to carry its burden of showing that Bonds had pro-vided Anderson the authority to identify the samples on eachparticular occasion, because Bonds could not remember howmany samples he had provided. (“[Bonds’] equivocal answers


about the number of samples he gave Anderson are not suffi-ciently certain to establish that Anderson had authority tospeak with regard to the particular samples at issue here.”).The district court thus concluded Bonds’ lack of memoryabout the number of samples militated against his having con-ferred on Anderson authority to speak for each disputed sam-ple in the case. Contrary to the government’s theory, the courtwas not suggesting Bonds should have had a perfect memory.

[8] The government also focuses on a district court remarksuggesting that to be admissible under Subsection C, the state-ments had to have been against Anderson’s penal interest. Thegovernment is correct that had they been against Anderson’spenal interest they may have been admissible under a differ-ent subsection of 801, but such a requirement does not appearin Subsection C. The district court may have misstated Sub-section C’s provision i.e., that the statement be “offeredagainst a party,” which these statements were, and incorrectlysuggested the statements had to qualify as admissions againstthe penal interest of Anderson, which these statements werenot. Any such misstatement had no bearing on the court’s rul-ing, however, because the court clearly ruled that the govern-ment failed to show the statements were authorized by Bonds.It thus applied the correct standard. A tangential misstatementdoes not transform the ruling into error. There was no abuseof discretion in the court’s refusing to admit the statements,under FRE 801(d)(2)(C), as statements authorized by Bonds.

[9] We now turn to whether the statements, though notspecifically authorized, came within the scope of an agencyor employment relationship that permitted their admissionunder FRE 801(d)(2)(D). That provision makes admissible “astatement by the party’s agent or servant concerning a matterwithin the scope of the agency or employment, made duringthe existence of the relationship.” The district court rejectedthe government’s contention that Anderson’s statements toValente are admissible under this provision. Again, we may


reverse only for abuse of discretion. U.S. v. 4.5 Acres of Land,546 F.3d 613, 617 (9th Cir. 2008).

[10] To determine whether Anderson’s statements areadmissible under Rule 801(d)(2)(D), we must “undertake afact-based inquiry applying common law principles of agen-cy.” NLRB v. Friendly Cab Co., Inc., 512 F.3d 1090, 1096(9th Cir. 2008). For Anderson’s statements to fall under thisexception, he would have to have been Bonds’ employee oragent.

The government provides two arguments in favor of admis-sibility of Anderson’s statements under Rule 801(d)(2)(D).First, it argues that the district court erred in finding that, asa general matter, Anderson’s work as a trainer was not that ofan employee or agent. Next, it contends that even if Andersondid not generally act as an employee or agent, he assumed thestatus of an agent for the purpose of delivering Bonds’ bloodand urine to BALCO. We cannot accept either argument.

[11] The record supports the district court’s conclusionthat Anderson was an independent contractor, rather than anemployee. The parties briefed this issue under the SecondRestatement of Agency, which sets forth ten factors that acourt should consider: 1) the control exerted by the employer,2) whether the one employed is engaged in a distinct occupa-tion, 3) whether the work is normally done under the supervi-sion of an employer, 4) the skill required, 5) whether theemployer supplies tools and instrumentalities, 6) the length oftime employed, 7) whether payment is by time or by the job,8) whether the work is in the regular business of theemployer, 9) the subjective intent of the parties, and 10)whether the employer is or is not in business. Restatement(Second) Agency § 220(2) (1958). Although the parties pre-sented this issue primarily under the Second Restatement, wehave independently reviewed the Third Restatement, whichabandons the term independent contractor. See Restatement(Third) Agency § 1.01 cmt. c. We find nothing in the later


Restatement’s provisions that would materially change ouranalysis or cause us to reach a different result than the districtcourt.

[12] In applying the Second Restatement factors, a courtwill look to the totality of the circumstances, but the “essen-tial ingredient . . . is the extent of control exercised by theemployer.” Friendly Cab, 512 F.3d at 1096 (internal quota-tion marks and citation omitted). Virtually none of the SecondRestatement factors favor the existence of an employmentrelationship in this case. Most important, there is no evidencethat Bonds directed or controlled any of Anderson’s activities.To the contrary, the facts on record regarding the Bonds-Anderson relationship evidence a lack of control exercised byBonds. For example, Anderson seemingly had free reign toprovide Bonds whatever muscle creams and supplements hefelt appropriate. Bonds took these items without question onthe basis of his friendship with Anderson. Rather than exer-cise control over Anderson’s training program, Bonds testi-fied that he had a “Dude, whatever” attitude to Anderson’sactions. These facts make it clear that Anderson was, as thedistrict court found, not an employee.

Other elements of the Second Restatement test also point toAnderson’s acting as an independent contractor, not anemployee. For example, Anderson provided his own “instru-mentalities” and “tools” for his work with Bonds. See Restate-ment (Second) Agency § 220(2)(e). All of the aforementionedcreams and supplements came from Anderson, not Bonds.There is no evidence that Bonds supplied any type of equip-ment or material related to Anderson’s training regimen. Asa trainer, Anderson was engaged in a “distinct occupation.”See id. § 220(2)(b). He had many different clients and offeredhis services to others during the same period. Moreover, it isimportant in this context that Bonds testified that he consid-ered Anderson a friend and not an employee. See id.§ 220(2)(i) (noting subjective intent of parties relevant todetermining whether one is an independent contractor).


[13] The government is correct that certain, but limited,aspects of the Bonds-Anderson relationship may suggest anemployer/employee relationship. For example, Bonds con-ceded that he paid Anderson annually, and not “by the job.”See id. § 220(2)(g). Yet Bonds paid gratuitously, and not onthe basis of any regular employment relationship. There is,thus, sufficient basis in the record to support the districtcourt’s conclusion that Anderson acted as an independentcontractor rather than an employee.

[14] Unlike employees, independent contractors are notordinarily agents. See Dearborn v. Mar Ship Operations, Inc.,113 F.3d 995, 998 n.3 (9th Cir. 1997) (recognizing that “anindependent contractor . . . may be an agent” in limited cir-cumstances in which he acts “subject to the principal’s overallcontrol and direction”). The district court was therefore cor-rect to conclude that “independent contractors do not qualifyas agents for the purposes of Rule 801(d)(2)(D)” in the sensethat evidence of an independent contractor relationship isinsufficient in itself to establish an agency relationship for thepurposes of the rule. See Merrick v. Farmers Ins. Group, 892F.2d 1434, 1440 (9th Cir. 1990) (holding that statements ofindependent contractors were not admissible under Rule801(d)(2)(D) when there was no showing that the contractorswere also agents). However, a finding that a speaker is anindependent contractor does not preclude a finding that thespeaker is also an agent for some purposes.

The dissent thus incorrectly suggests the district court’s rul-ing was the result of an incorrect application of a legal stan-dard. We have of course observed many times that a districtcourt abuses its discretion when it makes an error of law. See,e.g., Yokoyama v. Midland Nat. Life Ins. Co., 594 F.3d 1087,1091 (9th Cir. 2010) (citing cases); U.S. v. Hinkson, 585 F.3d1247, 1261-62 (9th Cir. 2009) (en banc). In this case, how-ever, the district court did not base its ruling on a legal deter-mination that independent contractors can never be agents.Rather the district court held that the government had not


shown that the task of identifying Bonds’ samples was withinthe scope of any agency relationship.

Accordingly, we must now address the government’s argu-ment that even if Anderson was an independent contractor, heacted as an agent in delivering Bonds’ blood and urine toBALCO. An agent is one who “act[s] on the principal’sbehalf and subject to the principal’s control.” Restatement(Third) Agency § 1.01. To form an agency relationship, boththe principal and the agent must manifest assent to the princi-pal’s right to control the agent. Id.

[15] As is clear from the above description of Anderson’sand Bonds’ relationship, Anderson did not generally act sub-ject to Bonds’ control in his capacity as a some-time trainer,nor did he or Bonds manifest assent that Bonds had the rightto control Anderson’s actions as a trainer. There is no basisin the record to differentiate between Anderson’s actions inhis capacity as a trainer and his conduct in delivering the sam-ples to BALCO. There is little or no indication that Bondsactually exercised any control over Anderson in determiningwhen the samples were obtained, to whom they were deliv-ered, or what tests were performed on them. Nor, contrary tothe dissent’s assertion, is there any indication that eitherBonds or Anderson manifested assent that Bonds would havethe right to instruct Anderson in these respects. It was Ander-son who proposed to Bonds that he have his blood and urinetested. Bonds provided samples to Anderson when requestedby the latter, and according to Bonds’ testimony, “didn’t thinkanything about it” after doing so. It was, further, Andersonwho selected BALCO as the location for testing. In short, itwas Anderson who defined the scope of the testing. Bondsprovided Anderson no guidance or direction in terms of whatspecific tests BALCO would run on the samples. Bonds didnot even inquire into the results of the tests. Rather, Andersonwould, apparently on his own initiative, inform Bonds ofresults. The dissent says that Bonds instructed Anderson todeliver the samples to BALCO within 30 minutes of extrac-


tion, but this is not correct. The record shows that it wasAnderson who told Bonds about the 30-minute time con-straint. Moreover, the samples were taken at Bonds’ house notbecause Bonds so ordered, but because his house was close toBALCO and taking the samples there made it possible forthem to be delivered in time. Bonds quite understandablywould allow only his own doctor to take the samples, but thisdoes not show that he also had reserved the right to instructAnderson as to what to do with the samples. See Restatement(Third) of Agency § 1.01 cmt. f (stating that the fact that a ser-vice recipient imposes some constraints on the provision ofservices does not itself mean that the recipient has a generalright to instruct and control the provider).

[16] While the dissent focuses on whether, as a practicalmatter, Bonds had the “capacity” to assess Anderson’s perfor-mance and give Anderson instructions as to how to have thetesting performed, it ignores the key question: whether Bondsand Anderson ever agreed that Bonds could do so. These arevery different inquiries. Any time one person does somethingfor another, the latter is in all likelihood capable of evaluatingand instructing the first. The Restatement provision on whichthe dissent relies makes it clear, however, that not all serviceproviders and recipients stand in agency relationships.Restatement (Third) of Agency § 1.01 cmt f. Rather, as wehave seen, an agency relationship exists only if both the pro-vider and the recipient have manifested assent that the pro-vider will act subject to the recipient’s control and instruction.Id. The question whether Bonds had the ability, in a practicalsense, to prevent Anderson from having the testing carried outsimilarly fails to resolve the question whether Anderson wasBonds’ agent. Obviously Bonds could have put an end to thetesting by refusing to provide Anderson with samples of hisblood and urine, but that does not establish an agency rela-tionship. There is nothing in the record that requires a findingthat Bonds actually controlled Anderson with respect to thetesting or that Bonds and Anderson had agreed that Andersonwould be obligated to follow Bonds’ instructions if Bonds


chose to provide them. Contrary to the dissent’s contention,we do not maintain there needs to be an explicit agreement,but there must be at least some manifestation of assent to theprincipal’s right to control. Here, the testing was performedon Anderson’s own initiative and not at the request of Bonds.The dissent incorrectly assumes otherwise. Thus, the districtcourt did not abuse its discretion in finding that Anderson wasnot an agent for the limited purpose of the drug testing.

The dissent incorrectly suggests our holding somehow con-flicts with Harris v. Itzhaki, 183 F.3d 1043 (9th Cir. 1999)and U.S. v. Jones, 766 F.2d 412 (9th Cir. 1985). Itzhaki wasa Fair Housing Act case in which we held that the jury, astrier of fact, should decide whether discriminatory statementswere made by an agent of the defendant. Id. at 1054. Thatcase has no relevance to the finding of a district court on amotion in limine. Our discussion is also fully consistent withJones. There we found the district court did not abuse its dis-cretion in admitting statements of ‘bag men’ in an extortionscheme. Jones, 766 F.2d at 415. Jones has no application tothis case. The fact that this court deferred to a district court’sdecision to admit evidence in Jones does not compel us torefuse to defer to a district court’s decision here and to admitAnderson’s statements. Moreover, in this case the governmentwas required to demonstrate that Anderson was an agent bya preponderance of the evidence. See Bourjaily, 483 U.S. at175. The applicable burden of proof was lower at the time thecourt decided Jones. See 766 F.2d at 415 (“Evidence ofagency must be substantial, although proof by a preponder-ance is not necessary.”).

To the extent that the dissent looks beyond the relevanttime period to rely on a claim that on May 28, 2003, Bonds“asked Anderson to have Bonds tested for steroids to protecthimself against false test results,” the claim is both irrelevantand misleading. The government’s arguments on appeal per-tain to lab results from 2001 and 2002. What Bonds askedAnderson to do in 2003, is not relevant. The statement is mis-


leading because the record only shows that, on that date, afterbeing required to submit to a steroids test by Major LeagueBaseball, Bonds told Anderson that he was suspicious of thetest and that he “want[ed] to know what baseball’s doingbehind our backs.” The dissent infers from this that Bondsmust have asked Anderson to verify the test results by havingBALCO independently test Bonds for steroids, but this is notthe only possible interpretation of Bonds’ testimony. In anyevent, it sheds no light on the nature of Bonds’ and Ander-son’s relationship with respect to the tests performed in 2001and 2002.

Although the district court might, in the exercise of its dis-cretion, have reached a different decision, our standard ofreview is deferential, and we cannot say here that we are leftwith a “definite and firm conviction” that it made a “clearerror in judgment” in ruling that Rule 801(d)(2)(D) did notapply. 4.5 Acres of Land, 546 F.3d at 617. There was noabuse of discretion.

C. The Log Sheets

The district court excluded BALCO log sheets purportedlyshowing Bonds testing positive for steroids “because even if[the log sheets] qualify as business records, they are not rele-vant because the government cannot link the samples to[Bonds] without Anderson’s testimony.” The parties sparabout whether this statement by the district court meant rele-vance in the literal sense that they did not on their face pertainto Bonds, or whether the district court meant they could notin fact relate to Bonds unless the data was authenticated asrelating to Bonds. The district court meant the latter.

[17] The log sheets were business records reflecting thatBALCO recorded test results in the name of Barry Bonds.The records themselves, however, go no further toward show-ing the actual samples came from Barry Bonds than Valente’stestimony about what Anderson told him. If anything the logs,


when offered for the truth of the identification of the sampledonor, created an additional level of hearsay rather thanremoving one. The district court did not abuse its discretionin refusing to admit the log sheets as evidence that the sam-ples listed were Bonds’.

IV. Conclusion

The district court’s evidentiary rulings are AFFIRMEDand the case is remanded for further proceedings consistentwith this opinion.

BEA, Circuit Judge, dissenting:

I dissent.

At a pretrial hearing, the district court granted defendantBarry Bonds’s motion in limine to exclude statements ofJames Valente. Valente was an employee of BALCO, a labo-ratory that tested Bonds’s blood and urine for steroids. He tes-tified that Greg Anderson delivered samples of blood andurine to BALCO, and while doing so, Anderson identified thesamples as being Bonds’s blood and urine.

Without doubt, Anderson’s statements to Valente were out-of-court statements, offered to prove the matter asserted—thatthe samples came from Bonds—and were neither made underoath nor subject to cross-examination by Bonds. Although thestatements appear to be hearsay, they are defined as not hear-say by Federal Rule of Evidence 801(d) because they are, inlaw, statements or “admissions” of a party-opponent.1 Thestatements are not hearsay for two reasons that were incor-rectly disdained, first by the district court, and then by themajority.

1Federal Rule of Evidence 801(d) begins: “A statement is not hearsayif—”.


First, Anderson was an agent of Bonds; his statements toValente concerned a matter within the scope of his agency;and, his statements were made during the existence of hisagency. Rule 801(d)(2)(D).2 Anderson acted as Bonds’s agentfor the collection of samples from Bonds, and in the deliveryof those samples to BALCO for the purposes of their testing.Further, Anderson acted as Bonds’s agent when he dealt withBALCO to procure the tests and the test results, and when hereported the results back to Bonds. Bonds’s sole role was togive Anderson the samples. Everything else was up to Ander-son and BALCO. Because the task Bonds entrusted to Ander-son was to accomplish testing Bonds’s blood and urine, fromstart to finish, Anderson’s mid-task statements to Valenteabout whose samples were being tested concerned a matterwithin the scope of his authority as Bonds’s agent. The state-ments were admissible in evidence as statements of Bonds—a party opponent to the United States—under Rule801(d)(2)(D).

Second, a less frequently used rule: Anderson was autho-rized by Bonds to identify the samples as coming from Bondsunder Rule 801(d)(2)(C). As it was normal and necessary tomake sure accurate test results were procured, Anderson wasimpliedly authorized to identify the samples as coming fromBonds. Because Anderson made these statements for the pur-pose of insuring accuracy of the test results, they are imputedto party-opponent Bonds as authorized admissions, and wereadmissible in evidence against him under Rule 801(d)(2)(C).

The district court made several errors of law in grantingBonds’s motion in limine, the most egregious of which wasto hold that independent contractors are not agents as a matterof law. The majority compounds these errors by acknowledg-ing the district court indeed erred, but then improperlyreviewing that court’s legal conclusion under a deferential

2All references to “Rules” or a “Rule” in this dissent refer to the FederalRules of Evidence.


standard of review. The correct approach to this case, underour standard of review as expressed in United States v. Hink-son, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc), is firstto identify whether the district court erred in identifying thecorrect legal standard or in applying the correct legal standardto the facts of a case. If the district court has so erred, thenwe do not defer to how the district court decided the case; wereverse—unless the error was harmless. Of course, no oneclaims an error in barring this evidence from admission isharmless.

Perhaps less egregious, but equally prejudicial in result,was the failure of the district court to identify and apply thecorrect rule of law to determine whether Anderson was autho-rized by Bonds to identify his samples to BALCO. Ratherthan consider the totality of the task entrusted by Bonds toAnderson—procure tests and their results—the district courtcharacterized Anderson as solely a trainer and delivery cou-rier. Failure properly to consider the task entrusted to Ander-son by Bonds resulted in legal error under Rule 801(d)(2)(C).

I. Background

A. Procedural Background

Barry Bonds began playing professional baseball in 1985.He joined the San Francisco Giants in 1993, and in 2001 heset Major League Baseball’s single-season home run record,hitting 73 home runs.

In 2003, the federal government began investigating theBay Area Laboratory Corporation (“BALCO”) and severalindividuals, including Bonds’s trainer, Greg Anderson, forconspiracy to distribute steroids to professional athletes. Thegovernment executed a search warrant on BALCO’s officesand seized laboratory reports and handwritten notes related toblood and urine tests of several individuals, including reportspurporting to show Bonds tested positive for steroids.


On December 4, 2003, Bonds testified before a grand juryregarding Anderson and BALCO. Bonds denied he had takensteroids, at least knowingly. On December 4, 2008, a grandjury returned a second superseding indictment chargingBonds with ten counts of making false declarations before agrand jury and one count of obstruction of justice.

Bonds moved to suppress laboratory reports and other doc-uments the government seized during a search of BALCO andother laboratories. The government contends these documentsprove Bonds tested positive for steroids in 2001 and 2002.

The admissibility of the BALCO reports against Bondsdepends on whether the government can prove the blood andurine tested were Bonds’s. For this necessary proof, the gov-ernment sought to introduce testimony from James Valente, aBALCO employee, that Anderson, Bonds’s trainer and theman who brought blood and urine samples to BALCO, statedto Valente the blood and urine samples were Bonds’s. Thedistrict court ordered excluded the BALCO reports beforetrial on the grounds the documents contained hearsay. Fromthat order, this appeal followed.

B. Bonds and Anderson’s Relationship

The following facts are drawn from Bonds’s grand jury tes-timony: Anderson and Bonds have known each other sincethey met in grade school. They lost touch after high school,but reconnected in 1998. At that time, Bonds played for theSan Francisco Giants; he began weight training withAnderson—a professional weight lifting trainer—as hiscoach. When Bonds testified to the grand jury in 2003, Bondssaid he continued to work out daily under Anderson’s coach-ing.

At some time in 2000 or 2001, Anderson suggested Bondsprovide Anderson with samples of Bonds’s blood and urine soAnderson could take the samples to be tested at BALCO and


then report the results to Bonds. Bonds testified the purposeof the tests was to show whether he was deficient in certainnutrients, such as zinc or magnesium. The information pro-vided by these tests would help Bonds alter his diet to regu-late his nutrient levels. Bonds testified that before 2003 hehad no idea BALCO may have sent his samples to be testedfor steroids.

Bonds provided Anderson with blood samples five or sixtimes, between approximately 2000 and 2003. He providedurine samples approximately four times. Each time, Andersonprocured and provided the vials into which Bonds’s sampleswere to be placed. Bonds had his personal doctor, Dr. Teng,draw his blood and collect his urine at Bonds’s home and putthe fluids in the vials brought there by Anderson. Dr. Tengthen gave the samples to Anderson, at Bonds’s home. Ander-son had to deliver the blood and urine samples to BALCOwithin 30 minutes; otherwise, the samples would not yieldvalid test results. Bonds knew Anderson would drive the sam-ples directly from Bonds’s house to the BALCO labs. Bondstestified he did not instruct Anderson to put Bonds’s samplesunder Anderson’s name or otherwise preserve Bonds’s ano-nymity.

Later, Anderson told Bonds the tests came back and “ev-erything is fine.” Anderson did not give Bonds any writtenreports explaining the test results and Bonds did not requestadditional details. Anderson did, however, tell him how muchfood to consume and what vitamins to take.

At some point after Bonds began to provide samples toAnderson, Bonds visited BALCO’s offices with Anderson.The BALCO offices were very close to the gym where theyexercised together. While at the BALCO laboratory, Bondsmet Victor Conte, the CEO of BALCO. Conte, Bonds, andAnderson discussed how testing Bonds’s blood and urinewould help Bonds regulate his nutrient levels. Bonds testified


they did not discuss any lotions or liquids that Anderson pro-vided to Bonds.

During the 2003 season, Bonds was tested for steroids intwo unannounced tests conducted by Major League Baseball.The government seized a document titled “NSIC Drug Test-ing Custody and Control Form,” dated May 28, 2003, fromQuest Diagnostic. Bonds testified the document was “one ofmy filled-out sheets from Major League Baseball.”

The same day he was tested by Major League Baseball,Bonds specifically asked Anderson to have Bonds tested forsteroids to protect himself against possible false test results.Bonds testified “I may have given [the Major League’s docu-ment] to Greg [Anderson]. Because when I took the sample—when I took the test I wanted to make sure, like I said earlier,because I don’t trust baseball, to make sure that they don’tcome back to me and try to say: ‘X, Y, Z,’ that I protectmyself.” In giving Anderson Major League Baseball’s form,Bonds specifically directed Anderson to have BALCO verifyor refute the results of Major League Baseball’s steroids test.After the BALCO test results came back, Anderson toldBonds that Bonds had tested negative for steroids.

In May or June 2003, Bonds posed for photographs withConte and sat for an interview as part of an advertisement forBALCO in Muscle & Fitness magazine. In the advertisement,Bonds discussed the “drawing of blood” and “being able toanalyze your levels of your body.” Bonds appeared in theadvertisement for free. No one testified before a grand jurythat BALCO charged Anderson or Bonds for the blood andurine testing.

In 2002 or 2003, Anderson began providing Bonds with aliquid Bonds testified was flax seed oil, and with a cream.Bonds testified Anderson administered the cream to Bondsdirectly, and did not give Bonds the cream for Bonds to useon himself. Bonds testified he never knew what the cream or


the liquid contained; Anderson never told him and Bondsnever asked.

Bonds testified he never paid for the blood or urine testing,the cream, the flax seed oil, or any other product from Ander-son or BALCO. Bonds did, however, pay Anderson $15,000annually for Anderson’s weight training services.3 Bonds paidAnderson in cash, either in a single lump sum or sometimes“split up.” Despite paying Anderson for several years, Bondsdid not sign a contract with Anderson for his weight trainingservices. After Bonds broke the single-season home runrecord, he gave Anderson, and several other people, such ashis publicist, strength coach, and stretching coach, a $20,000bonus each. After the 2002 season, Bonds gave Anderson, andseveral other people, a World Series ring, worth approxi-mately $ 3,000. Bonds did not deduct any of these paymentsto Anderson from his taxable income.

II. Standard of Review

We review a district court’s ruling excluding evidence forabuse of discretion. United States v. Alarcon-Simi, 300 F.3d1172, 1175 (9th Cir. 2002). A district court must decide pre-liminary questions of evidence under Rule 104(b).4 In crimi-nal trials, the court must find a condition of fact, whichconstitutes such a preliminary question, by a preponderanceof the evidence. Bourjaily v. United States, 483 U.S. 171, 176(1987).

3Bonds also paid his two other trainers similar amounts. Unlike Ander-son, Bonds testified he paid his other trainers as employees, but the simi-lar, annual amount he paid Anderson was a “gift” because Anderson wasBonds’s friend.

4Rule 104(b) states: “When the relevancy of evidence depends upon thefulfillment of a condition of fact, the court shall admit it upon, or subjectto, the introduction of evidence sufficient to support a finding of the ful-fillment of the condition.”


[T]he first step of our abuse of discretion test is todetermine de novo whether the trial court identifiedthe correct legal rule to apply to the relief requested.If the trial court failed to do so, we much concludeit abused its discretion. . . . [T]he second step of ourabuse of discretion test is to determine whether thetrial court’s application of the correct legal standardwas (1) illogical, (2) implausible, or (3) without sup-port in inferences that may be drawn from the factsin the record. If any of these three apply, only thenare we able to have a definite and firm convictionthat the district court reached a conclusion that wasa mistake or was not among its permissible options,and thus that it abused its discretion by making aclearly erroneous finding of fact.

Hinkson, 585 F.3d at 1261-62 (internal citations and quotationmarks omitted).

If the trial court did not apply the correct legal standard, orits application of the correct legal standard to the facts wasillogical, implausible, or without support in inferences thatmay be drawn from the facts in the record, then the trial courtabused its discretion. Id. If the error was not harmless, thenwe must reverse. Id.

III. Analysis

A. Anderson’s Statements Are Admissible UnderRules 801(d)(2)(D) (statements of an agent relatedto a matter within the scope of his authority) and801(d)(2)(C) (authorized admissions).

The district court, and then the majority, err in holdingAnderson’s statements were hearsay. Statements made by aparty’s agent that are related to a matter within the scope ofhis agency or by a person’s authorized speaker are not hearsayunder Federal Rules of Evidence 801(d)(2)(D) and


801(d)(2)(C). Instead, such statements are considered admis-sions of a party litigant. The errors were not harmless andlikely affected the outcome of the district court’s decisionwhether to exclude the evidence. This is not a situation whereoverwhelming evidence supports the district court’s holding,such that we should affirm despite the presence of one or twoisolated errors in the district court’s opinion. To the contrary,the evidence here strongly supports a finding that Anderson’sstatements were admissible in evidence because they (1) werestatements about a matter related to a matter within the scopeof Anderson’s agency for Bonds, for the purposes of Rule801(d)(2)(D); and (2) were impliedly authorized by Bonds asa necessary component to Anderson’s task, for the purposesof Rule 801(d)(2)(C).

B. Anderson’s Task

The district court and the majority’s error, in holding thatAnderson’s statements are inadmissible under Rules801(d)(2)(D) and (C), seems a consequence of their focus onAnderson’s role as Bonds’s trainer—a red herring—and theiroverly narrow characterization of the task the evidence provesBonds entrusted Anderson to perform. It is not necessary forthe government to rely on some professional label, such astrainer or coach, for Anderson’s statements to be admissible.As I will discuss below, it is enough that Bonds authorizedAnderson to be his agent for the purpose of the specific taskof setting up tests and procuring accurate test results fromBALCO, or, that Bonds authorized Anderson to make state-ments that would be usual and ordinary in accomplishing thattask. For the sake of clarity, I set forth at the outset of thisanalysis a complete description of what I see as Anderson’stask (the “Task”).

Bonds assented that Anderson perform the followingactions on Bonds’s behalf: (1) procure the vials which wereto contain the blood and urine samples, and furnish such vialsto Bonds and Bonds’s doctor; (2) once the vials were filled


with Bonds’s samples, collect such samples from Bonds atBonds’s home; (3) deliver the samples to BALCO within 30minutes of collection of the bodily fluids; (4) deal withBALCO to procure testing of the samples; (5) learn the testresults from BALCO; and (6) report the test results to Bonds.For Anderson to accomplish this Task successfully, it wasnecessary for him to identify the samples in a manner thatwould later allow BALCO accurately to report test results toAnderson and for Anderson to know the results were truly ofBonds’s samples, so he could accurately report to Bonds hisBALCO results. Anderson’s Task included each and all of theabove-enumerated actions.

C. Anderson’s Statements Are Admissible Under Rule801(d)(2)(D) (statements of an agent concerning a matter within the scope of the agency or employment).5

“A statement by the party’s agent or servant concerning amatter within the scope of the agency or employment, madeduring the existence of the relationship” is not hearsay. Rule801(d)(2)(D). The district court made two errors of law andone error of fact in deciding Anderson’s statements were notadmissible into evidence under Rule 801(d)(2)(D). First, thedistrict court erred—and the majority here agrees—as to amatter of law in holding independent contractors could not beagents under Rule 801(d)(2)(D). Second, the district courterred as to a matter of law in holding Anderson’s statementswere inadmissible because making them was not within thescope of Anderson’s agency, when the correct legal standardis whether an agent’s [Anderson] statements were related toa matter within the scope of his agency. Finally, the districtcourt erred as to a matter of fact in holding the governmentdid not cite to any evidence of Bonds’s relationship withAnderson and that there was no evidence that Bonds paid

5I begin with Rule 801(d)(2)(D) because it is more broad than Rule801(d)(2)(C) and our courts have more fully developed what statementsare admissible under this rule.


Anderson. The record is replete with evidence of Bonds’srelationship with Anderson and that Bonds paid Anderson,regularly and significantly. These errors are not harmless andshould compel us to reverse.

The district court erred as to a matter of law in holding: “Inthe Ninth Circuit, independent contractors do not qualify asagents for the purposes of Rule 801(d)(2)(D).” United Statesv. Bonds, No. 07-00732, 2009 WL 416445, at *5 (N.D. Cal.Feb. 19, 2009) (citing Merrick v. Farmers Ins. Group, 892F.2d 1434 (9th Cir. 1990)). And there the district courtstopped its analysis of Rule 801(d)(2)(D). We review de novothe legal issue whether independent contractors may qualifyas agents for the purposes of Rule 801(d)(2)(D). See Hinkson,585 F.3d at 1262. The majority correctly holds that finding anindependent contractor relationship is not sufficient to showagency, but the majority also recognizes that such a findingdoes not preclude the existence of an agency relationship.Majority Op. at 8572. The majority is incorrect, therefore, instating the district court identified the correct legal standard.See Majority Op. at 8571-72. On the contrary, based on thelaw and even on the majority’s view of the law, the districtcourt was wrong as a matter of law when it held independentcontractors were categorically non-agents.

The one benefit of the majority’s opinion on the indepen-dent contractor issue, is that it explains away the somewhatcareless language in Merrick and clarifies that independentcontractors may indeed be agents for the purposes of Rule801(d)(2)(D). Majority Op. at 8571-72. Nevertheless, themajority still begins its analysis of that rule by citing NLRBv. Friendly Cab Co., Inc., 512 F.3d 1090, 1096 (9th Cir.2008), a decision that is entirely about distinguishing indepen-dent contractors from employees in the collective bargainingcontext and has nothing to do with those aspects of agencylaw that provide for the imputation of an agent’s statement tohis principal, here a defendant in a criminal case. The claimthat independent contractors may not be agents for the pur-


pose of Rule 801(d)(2)(D) is a legal error; cases that distin-guish between independent contractors and employees are notrelevant to the definition of an agent.6

Because the district court erred as to a matter of law, weshould review the record to determine whether its error washarmless; it was not. The evidence is sufficient to support acontrary finding: that Anderson was Bonds’s agent. Morethan that, the evidence is compelling that Anderson’s state-ments meet the requirements under Rule 801(d)(2)(D):Bonds’s testimony shows that (1) Anderson was Bonds’sagent for the Task; (2) Anderson’s statements to Valente iden-tifying the samples concerned a matter within the scope of theTask, hence Anderson’s agency; and (3) Anderson made hisstatements during the existence of the agency relationship.Rather than categorically to have eliminated the possibilitythat Anderson could have been Bonds’s agent because Ander-son was an independent contractor, the district court shouldhave applied the correct legal standards (see below) to theabundant evidence of Anderson’s agency.

(1) Anderson was Bonds’s agent for the Task. Agency isthe fiduciary relationship that arises when one person, theprincipal, manifests assent to the agent for the agent to act onthe principal’s behalf and subject to the principal’s control,and the agent agrees or otherwise consents. Batzel v. Smith,333 F.3d 1018, 1035 (9th Cir. 2003); accord Restatement(Third) of Agency § 1.01 (2006). In short, agency requires (a)the principal’s assent; (b) the principal’s right to control; (c)the agent acting on the principal’s behalf or benefit; and (d)the agent’s consent.

6“The common law of agency . . . additionally encompasses the employ-ment relation . . . . The common term ‘independent contractor’ is equivo-cal in meaning and confusing in usage because some termed independentcontractors are agents while others are nonagent service providers . . . .This Restatement does not use the term ‘independent contractor.” Restate-ment (Third) of Agency § 1.01 cmt. c (2006).


(a) Bonds assented to Anderson’s performance of the Task.Bonds testified that he agreed to have Anderson take hisblood and urine samples to BALCO. Moreover, Bonds mani-fested such assent not only to Anderson, but to BALCO, forBonds testified he met with Conte, CEO of BALCO, andAnderson at BALCO’s facilities. There, Conte, Bonds, andAnderson discussed testing Bonds’s bodily fluids and the con-sequent results as to his nutrient levels. Bonds did not objectto Anderson’s dealing with BALCO to procure the testing andresults discussed. Bonds also asked Anderson to have himtested to check Major League Baseball’s tests for errors.

(b) Bonds had the right to control Anderson’s performanceof the Task. “The principal’s right of control presupposes thatthe principal retains the capacity throughout the relationshipto assess the agent’s performance, provide instructions to theagent, and terminate the agency relationship by revoking theagent’s authority.” Restatement (Third) of Agency § 1.01 cmt.f (2006). This is a key point of dispute between my analysisand that of the majority; I think the evidence shows Bondshad the capacity to control Anderson’s performance of theTask and the panel does not. Admittedly, Bonds testified hedid not exercise much supervisory authority over Anderson.But our inquiry is not whether Bonds exercised his authority,but only whether Bonds had the authority to exercise in thefirst place. Id. cmt. c (“A principal’s failure to exercise theright of control does not eliminate it.”). For example, justbecause a movie actor does not exercise his right to reject ascreen role through his agent does not mean that he no longerhas an agent, or that he can no longer reject roles through theagent.

Here, Bonds had the capacity to assess Anderson’s perfor-mance. For example, Bonds could have called BALCO to ver-ify Anderson was procuring testing and successfullydelivering the samples within 30 minutes of collection. Or,Bonds could have reviewed the test results documents.Bonds’s own testimony creates an inference that Bonds could


have done so: “So, I never saw the documents. I should have.Now that I think of it with the situation that is now, I shouldhave.” The fact that Bonds did not assess and modify or ter-minate Anderson’s performance of the Task does not mean,as a matter of law, that Bonds lacked the right to do so.

Bonds also had the right to instruct Anderson. Not only didBonds have that right, but he exercised it by instructingAnderson when and where Anderson was to collect Bonds’ssamples and when and where Anderson was to deliver thesamples. The majority is correct that Bonds did not instructAnderson regarding the 30-minute limit, but that limit didprovide one measure by which Bonds could evaluate Ander-son’s actions. The point, however, is that Bonds did instructAnderson when and where to collect his samples—at hishome in San Francisco. The majority seems to argue that thefact that Bonds’s house was also a suitable location under the30-minute requirement is incompatible with Bonds’s instruct-ing Anderson, Majority Op. 8573-74, but that is illogical.There were many places they could meet that were within 30minutes of BALCO; Bonds instructed Anderson to come toBonds’s house and not to another location, most likelybecause it was a private place where Bonds’s personal doctorwould be comfortable drawing his blood and collecting hisurine. Further, Bonds controlled when he could be testedbecause Anderson could not complete his task withoutBonds’s samples.7

Moreover, the majority completely omits the fact thatBonds met with BALCO’s CEO Conte to discuss, in Ander-son’s presence, the procedure for testing his blood and urine.

7The majority contends that Anderson’s flexibility in administeringcreams to Bonds shows that Bonds did not exercise control over Andersonas his trainer. Majority Op. at 8571. Again, the Government does not needto rely on Anderson’s relationship to Bonds as his trainer to show Ander-son was Bonds’s agent for the purposes of the Task. Moreover, Bonds hadthe right to exercise such control merely by telling Anderson not to rubcream on him.


This fact strongly supports the conclusion that Bonds wasintimately familiar with BALCO’s testing procedures, andtherefore able to assess and instruct Anderson, even if he“didn’t think anything about it” after doing so.

Most importantly, Bonds had the right and ability to termi-nate the agency relationship—a factor essentially ignored bythe majority. Were Bonds to decide to terminate the relation-ship, he could simply have stopped giving samples of hisblood and urine to Anderson. Without Bonds’s samples,Anderson could not perform the Task. It would be implausibleto find Anderson had access to some reserve of Bonds’s bloodor urine that he could have tested despite Bonds’s terminatinghis agency relationship with Anderson. Besides, any suchreserves could not meet the 30-minutes-from-draining “shelflife” requirement. The majority simply asserts, without expla-nation, that Bonds’s right to terminate Anderson’s role indealing with BALCO was not enough to prove Bonds hadcontrol over Anderson’s actions.

The majority also asserts Bonds and Anderson never mani-fested an agreement as to control. Majority Op. at 8573-74. Ican only interpret this point to be based on the majority’s con-fusion between the requirement that the principal and agentrespectively manifest assent and consent to the agency rela-tionship and the requirement that the principal has the right tocontrol the agent’s actions. The majority suggests there mustbe an explicit agreement between a principal and agent thatthe principal may control the agent’s actions. There is no sup-port for that claim in the Restatement or the law generally.The majority points to the Restatement (Third) of Agency’sdistinction between agents and service providers. § 1.01 cmt.f. Nothing in the comment to the Restatement section citedstates how the principal and agent must manifest assent andconsent to the right of control; to the contrary “[a] principal’spower to give instructions” is “created by the agency relation-ship.” Id. Further, none of the illustrations provided inRestatement (Third) of Agency § 1.01, comment f, mention


anything about an agreement as to control. Instead, the illus-trations contemplate that an agent has a right to resign as theprincipal’s agent if the agent does not wish to follow aninstruction. Id. The reference to “service providers,” relied onby the majority, is explained by turning to § 1.01, commentc, which distinguishes service providers on the basis thatagents deal with third parties while service providers do not.Id. cmt. c. Here, Anderson dealt with a third party, BALCO;that is an attribute of an agent, not of a service provider.

By demanding affirmative evidence of a manifestation ofassent and consent to the right to control, the majority puts thecart before the horse. As the Restatement explains:

If the principal requests another to act on the princi-pal’s behalf, indicating that the action should betaken without further communication and the otherconsents so to act, an agency relationship exists. Ifthe putative agent does the requested act, it is appro-priate to infer that the action was taken as agent forthe person who requested the action unless the puta-tive agent manifests an intention to the contrary orthe circumstances so indicate.

Id. cmt. c. Bonds requested Anderson act on his behalf by tak-ing his samples to BALCO and having them tested.8 Andersondid so. There is no evidence Anderson manifested an intentionto refuse the Task, nor are there circumstances that indicatehe did not consent. Therefore, the evidence gives rise to acompelling inference that Anderson acted as Bonds’s agent,subject to Bonds’s control.

The majority’s application of the law of agency to the facts

8Bonds requested Anderson perform this act even though Anderson ini-tiated the idea for testing Bonds. It does not matter who came up with theidea. Once Bonds decided he should be tested, he requested Anderson toperform the Task.


in this case imposes unwarranted obstacles to the govern-ment’s showing that Anderson was Bonds’s agent. The hold-ing in this case is flatly inconsistent with how this court hashandled similar cases in the past.

In United States v. Jones, 766 F.2d 412 (9th Cir. 1985),Jones appealed his conviction for interference with commerceby threats of violence under 18 U.S.C. § 1951. 766 F.2d at413. Jones called Kelsay, an accounts representative at a sav-ings and loan, and told her to pay him $65,000 or else hewould kill her daughter. Id. Jones arranged to pick up theextortion money from Kelsay. Id. At the arranged time andplace, two other men arrived and attempted to collect theextortion money. Id. Kelsay testified the two men made out-of-court statements that showed they were paid by a third manto collect a bag. Id. The prosecution introduced evidence thatJones was observed meeting with the two men shortly beforethey met with Kelsay. Id. at 415.

On those facts, we affirmed the district court’s holding thatthe two men were Jones’s agents and that their statements thatthey had been paid by a third man to collect a bag wereadmissible in evidence under Rule 801(d)(2)(D) to prove thetruth of the matter the two men had asserted in their out-of-court statements. Id. There was no evidence the two men wereemployed or paid regularly by Jones. The court did not ana-lyze whether the two men were independent contractors, andfrom the facts recited in the opinion, it is unlikely the twomen would be employees. It was enough the two men wereperforming a task for their principal, defendant-Jones, andwere talking about matters related to the scope of their task.

In Harris v. Itzhaki, 183 F.3d 1043 (9th Cir. 1999), Harris,an African-American woman, sued her putative landlords, theItzhakis, for racial discrimination in letting an apartment,under the Fair Housing Act. 183 F.3d at 1049. Harris over-heard Ms. Waldman, an elderly tenant who performed severaltasks for the landlords, say to a repairman/gardener: “The


owners don’t want to rent to Blacks.” Id. at 1048. Harris com-plained to her local housing council based on Ms. Waldman’sstatement. In response, the housing council tested theItzhakis’ apartments for racial discrimination through the useof black and white fair housing testers. Id. The testersreported that the black tester was treated in a discriminatorymanner based on her race. Id. The district court granted sum-mary judgment against Harris on the ground that Harris failedto produce admissible evidence of racial discrimination. Id. at1049.

We reversed, holding there was sufficient evidence fromwhich a jury could reasonably find Ms. Waldman was anagent of the Itzhakis and that her statement that the Itzhakisdid not want to rent to Blacks was admissible in evidenceunder Rule 801(d)(2)(D). Id. at 1054 (“[T]he question ofagency should be submitted to the jury unless the facts areclearly insufficient to establish agency or there is no disputeas to the underlying facts.”). Ms. Waldman assisted theItzhakis by collecting rent checks and showing vacant units toprospective tenants; this evidence supported the finding ofagency. Id. The court noted that Ms. Waldman received nopayment or discount on rent for her services, but did not holdthe lack of remuneration disqualified Ms. Waldman as an agent.9

Id.

In Jones and Itzhaki, the evidence supporting a finding ofagency was much weaker than it is in Bonds’s case. In Jones,the defendant never testified he sent the two men to collectthe swag from Kelsay; here, the entrustment of BALCO test-ing and reporting to Anderson is drawn directly from Bonds’sown testimony.10 In Itzhaki, the agent acted gratuitously,doing small favors for her landlords that did not even require

9In Itzhaki, the court afforded deference to the definition of agency pro-vided by HUD regulations. See 24 C.F.R. § 100.20. That regulationdefines agency in a manner that is consistent with the federal law ofagency. Itzhaki, 183 F.3d at 1054.

10I acknowledge the applicable burden of proof on the government waslower in Jones. But, the case provides a clear example of an agency rela-tionship in circumstances with much less evidence than in this case. Jonesdoes not compel the majority to reverse, but it does show the majority’snotion of agency is too narrow.


her to leave her apartment complex; here, Anderson’s Taskwas much more significant—it required him to drive betweenBonds’s home in San Francisco and BALCO’s offices in Bur-lingame at specific times, negotiate the testing of Bonds’ssamples with BALCO, and then return to Bonds to report theresults.11 And, of course, Anderson did not act gratuitously; hewas paid a yearly stipend, plus a bonus and a valuable ring forhelping in Bonds’s fitness program.

I need not quarrel with the majority’s analysis of whetherAnderson was an employee; he was clearly an agent, whichis enough to allow admission into evidence of his statementsand have the issue of agency submitted to a jury. But even asto the employment issue, the majority misapplies the correctstandard of review. Specifically, the majority admits that thefact Bonds paid Anderson annually supports finding anemployment relationship, Majority Op. at 8572, but omits thefact that the district court never considered that fact and worse—the district court found Bonds had not paid Anderson. Thedistrict court based its holding on its finding that it was notevident Bonds ever paid Anderson or that if he did, Bondsonly gave Anderson a ring worth $3,000. Bonds, 2009 WL416445, at *5.

This finding of fact is clearly erroneous. Bonds’s testimonyshows he did pay Anderson $15,000 annually for the six yearsbeginning in 1998 and ending in 2003. Bonds also paidAnderson $20,000 as a bonus when Bonds broke the singleseason home run record in 2001. In response to a question

11The majority writes Itzhaki has no relevance here because it involvedan objection to evidence at trial and not a motion in limine. Majority Op.8575. The majority provides no authority for this distinction and there isnone. The issue whether there is sufficient foundational evidence of theexistence of an agency relationship to admit into evidence statements bythe alleged agent is the same at trial and in a motion in limine. See Advi-sory Committee Notes, 2000 Amendment, Fed. R. Evid. 103 (equating“rulings on evidence whether they occur at or before trial, including so-called ‘in limine’ rulings”).


from a grand juror, Bonds testified he paid his other trainers,whom he considered to be employees, similar amounts. Themajority asserts “Bonds paid gratuitously,” Majority Op. at8572, which suggests Bonds did not receive any return valuefrom Anderson, but that claim is implausible: Bonds received,at a minimum, weight training coaching from Anderson,creams, and a liquid; and, performance of the sample testingTask. Of course, had the district court considered the evidenceof Bonds’s payments, it may also have found the paymentswere in part for Anderson to obtain the test results that helpedAnderson monitor Bonds’s nutritional requirements, and laterto verify that Bonds had not taken steroids in case the testsrun by Major League Baseball came back positive for ste-roids. Instead of acknowledging the district court’s clear errorand then deciding whether that error was prejudicial to thegovernment, the majority ignores the error and reviews thedistrict court’s legal conclusion deferentially. Majority Op. at8572 (searching only for a “sufficient basis” for the districtcourt’s holding).

In summary then, the district court abused its discretionbecause, by holding that statements by independent contrac-tors are inadmissible under Rule 801(d)(2)(D), the court failedto identify the correct legal standard: independent contractorscan be agents for purposes of imputation of statements to aprincipal. See Hinkson, 585 F.3d at 1262. This is reversibleerror because it prejudiced the government’s rights; in otherwords, the district court may have ruled in the government’sfavor had the district court applied the correct standard of lawto these facts. The majority itself admits: “the district courtmight, in the exercise of its discretion, have reached a differ-ent decision.” Majority Op. at 8576. The error more likelythan not prejudiced the rights of the government. See Hink-son, 585 F.3d at 1282. At the very least, we should remandto the district court to decide, for the first time, whetherAnderson qualified as an agent irrespective of whether he wasan independent contractor.


(c) Anderson acted on Bonds’s behalf, or for his benefit.Anderson performed his Task so that Bonds would better beable to manage his nutrition and diet. The parties do not dis-pute that Anderson acted on Bonds’s behalf.

(d) Anderson consented to perform the Task. Bonds testi-fied that Anderson took Bonds’s samples and reported backwith the results, and Valente testified that Anderson arrivedat BALCO with blood and urine samples that Anderson iden-tified as Bonds’s. Anderson’s performance is sufficient toshow his consent. Restatement (Third) of Agency § 1.01 cmt.c.

Therefore, Anderson was Bonds’s agent for the purpose ofthe Task. This conclusion is obvious if one considers similarfacts in a slightly different legal context. Imagine that Ander-son were not quite so loyal. Had Anderson sold documentsshowing Bonds tested positive for steroids to a celebrity gos-sip publication, would Bonds have a cause of action againstAnderson for breach of Anderson’s duty of confidentiality?Yes: “An agent’s relationship with a principal may result inthe agent learning information about the principal’s health,life history, and personal preferences that the agent shouldreasonably understand the principal expects the agent to keepconfidential. An agent’s duty of confidentiality extends to allsuch information concerning a principal even when it is nototherwise connected with the subject matter of the agencyrelationship.” Restatement (Third) of Agency § 8.05 cmt. c.Bonds could assert a cause of action only if Anderson werehis agent, but I have no doubt a court evaluating Bonds’s rela-tionship with Anderson in that context would hold Andersonwas Bonds’s agent for the purpose of the Task. It would noteven be necessary for Bonds to adduce facts supporting theclaim that Anderson was his friend or trainer.

(2) Anderson’s statements to Valente concerned, or wererelated to, a matter within the scope of Anderson’s authority.The district court erred on an issue of law in holding the gov-


ernment failed to show the task of identifying Bonds’s sam-ples was within the scope of the Task he gave Anderson. SeeBonds, 2009 WL 416445, at *5 (“The government has notestablished by a preponderance of the evidence that Andersonwas defendant’s agent or that the task of identifying defen-dant’s samples was within the scope of Anderson’s agency”(emphasis added)). Under Rule 801(d)(2)(D), the profferingparty must show the statement is related to a matter withinthe agent’s scope of authority, not that making the statementis itself within the scope of authority. Hoptowit v. Ray, 682F.2d 1237, 1262 (9th Cir. 1982) (holding Rule 801(d)(2)(D)“does not require a showing that the statement is within thescope of the declarant’s agency. Rather, it need only be shownthat the statement be related to a matter within the scope ofthe agency.” (emphasis added)). Anderson’s statements arerelated to the scope of his agency because it was pertinent forAnderson to tell BALCO from whom the samples were takento have BALCO accurately label the test results, so Andersoncould accurately report to Bonds the results of the tests on thesamples.

The district court’s error is not harmless because it mayhave admitted into evidence Anderson’s statements if it hadconsidered whether they were related to a matter within thescope of his agency and did not take an incorrectly restrictiveview of what types of statements were admissible into evi-dence under Rule 801(d)(2)(D).

(3) It is undisputed the statements were made during theexistence of the agency relationship between Bonds andAnderson.

Therefore, as Anderson’s statements meet the three require-ments under Rule 801(d)(2)(D) for admitting in evidenceAnderson’s statements to Valente identifying the samples asBonds’s, the district court’s decision to exclude such testi-mony should be reversed. The district court erred as to a mat-ter of law by holding independent contractors could not be


agents and by holding that statements admissible under Rule801(d)(2)(D) must be made within the scope of the agencyrelationship. The district court also clearly erred when itfound there was no evidence that Bonds paid Anderson, withthe exception of a ring worth $3,000.

Because the district court erred as to a matter of law, themajority is wrong to apply a deferential standard of review.Moreover, the majority fails in its attempt to distinguish Jonesor Itzhaki, two cases where the agency relationship at issuewas far more attenuated than is the case here. Reviewing therecord below to determine only if the district court’s mis-statements of law caused the government prejudice, theineluctable conclusion is that the district court’s error didprejudice the government and its decision should be reversed.

D. The evidence is also admissible under Rule801(d)(2)(C) (authorized admissions) becauseBonds authorized Anderson to tell BALCO thesamples were Bonds’s.

“A statement by a person authorized by the party to makea statement concerning the subject” is not hearsay. Rule801(d)(2)(C). Anderson’s statements to Valente identifyingblood and urine samples are not hearsay under Rule801(d)(2)(C) because Bonds impliedly authorized Andersonto make those statements. Bonds’s testimony shows heimpliedly authorized Anderson to have Bonds’s bodily fluidstested by BALCO and to report the results to Bonds so Bondscould know the test results. Anderson’s statements identifyingBonds’s samples concerned the subject of his Task.

To qualify a statement under this rule, the proffering partymust show the declarant had “authority to speak on a particu-lar subject on behalf of someone else.” Precision Piping &Instr., Inc. v. E.I. du Pont de Nemours & Co., 951 F.2d 613,619 (4th Cir. 1991).12 In practice, courts determine whether

12There is a dearth of Circuit case law explaining Rule 801(d)(2)(C).Because there are few pertinent cases, I turn to out-of-circuit authority toexamine the dimensions of this rule.


the declarant was authorized to speak based on the nature ofthe relationship between the party and the declarant, or basedon the nature of the task the declarant was to perform. SeeChristopher B. Mueller and Laird C. Kirkpatrick, FederalEvidence § 8:50 (2008). The majority errs in stating the appli-cable law by importing, without citation, the requirement theauthority to speak on behalf of the principal be “specific” ordone “specifically,” whatever that might mean.13 Majority Op.at 8567-69.

Courts have admitted in evidence statements made bydeclarants authorized to perform a particular task, when thenature of the task implies the authority to speak. E.g. UnitedStates v. Iaconetti, 540 F.2d 574, 577 (2d Cir. 1976); see alsoReid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d1292, 1306 (9th Cir. 1982). In these cases, the scope ofauthority was much narrower than in the cases where the roleof the declarant—i.e., the nature of the relationship—was tospeak for the party against whom the statement was offered.Yet in each case, the nature of the task entrusted to the declar-ant impliedly carried with it the authority to speak for theparty who had authorized the task. The extent of the authorityto speak is implied from the nature of the task and not exclu-sively by the occupation of the declarant, nor the nature of therelationship between the declarant and the person whoimpliedly authorized him to speak.

In Iaconetti, a government inspector was convicted of hav-ing solicited and received a bribe. 540 F.2d at 575. Defendant

13It is not clear whether the “specific” requirement is meant in the senseof “expressly” authorized (as opposed to “impliedly” authorized), or in thesense of “particularly” authorized (as opposed to “generally” authorized).

For purposes of determining what was authorized there is no rule ofagency law of which I know that determines an agent is unauthorizedunless he is given “specific” authority to do a task. When a clerk is askedto mail a letter, is he not authorized to place a stamp on it unless he is“specifically” told to use a stamp?


Iaconetti was assigned to conduct a survey of a company todetermine whether it was capable of performing a contractupon which it had successfully bid. Id. at 576. Iaconetti metwith Lioi, President of the company, and intimated he wouldassure a favorable report on the company if the company paidIaconetti one percent of the contract price. Id. Lioi told twoof his business partners, Babiuk and Goldman, and his lawyerStern, about Iaconetti’s solicitation of a bribe. Id. Lioi thentold the FBI, who had him audio-record his meeting withIaconetti where Lioi gave Iaconetti the bribe money. Id. TheFBI arrested Iaconetti after he received the money from Lioi.Id.

The government’s chief witness at trial was Lioi. Id.Defense counsel sought to impeach Lioi by suggesting oncross-examination that Lioi, rather than defendant Iaconetti,had initiated the scheme to pay the bribe. Id. To rebut thisdefense assertion and to corroborate Lioi’s testimony, thegovernment put on Goldman and Stern, who testified that Lioihad told them Iaconetti had asked for the bribe. Id. The dis-trict court denied Iaconetti’s post-conviction motion for a newtrial made on the grounds that Goldman’s testimony was inad-missible hearsay. Id. at 576-77.

The Second Circuit affirmed, holding Goldman’s testimonywas admissible under Rule 801(d)(2)(C) because “bydemanding the bribe Iaconetti necessarily authorized the per-sons who ran the business to discuss his demand among them-selves.” Id. at 577.14 Attorney Stern’s testimony, that Lioi hadtold him of Iaconetti’s bribe request, however, was inadmissi-ble under Rule 801(d)(2)(C) because it was not necessary forLioi to consult with his personal attorney as to whether to pay

14Note that the Second Circuit held Iaconetti “necessarily authorized”Lioi, not “specifically” authorized, nor “expressly authorized.” Id. at 577.In determining what, under the circumstances, was impliedly authorized,one considers what was necessary or normal. One does not insert require-ments of “specificity,” from sources unidentified, as a consideration.


Iaconetti the bribe. On the other hand, it was necessary forLioi to relay the bribe request to his business associatesbecause their assent was necessary to get the money to paythe bribe. Id. at 577-78.

Similarly, by asking Anderson to deliver blood samples toBALCO for testing and to report the results back to Bonds,Bonds necessarily authorized Anderson to identify the sourceof the blood; otherwise, Bonds could not be assured of theaccuracy of the results, which was the whole purpose of theTask entrusted by Bonds to Anderson. Without identificationof who had supplied the samples, Anderson’s Task wouldhave been a fool’s errand.

Our most extensive discussion of Rule 801(d)(2)(C) isfound in Reid Bros. Reid Brothers Logging Co. sued two pulpcompanies for violations of the Sherman Act. 699 F.2d at1295. The district court found the pulp company defendantshad conspired to dominate all segments of the southeastAlaska timber industry. Id. On appeal, the defendants chal-lenged on hearsay grounds the district court’s admission of areport that was material to show defendants engaged in preda-tory pricing. Id. at 1306 (“[T]he report . . . provided the solesupport for the district court’s finding that the defendants pur-posefully set log prices at levels below market value.”). Weheld the report was admissible under Rule 801(d)(2)(C). Id.The report had been prepared by an employee of the Oji PaperCompany of Japan. Id. Oji Paper Company was a shareholderof defendant-ALP’s parent company. Id. The report was pre-pared at the request of ALP’s chairman. Id. The Oji PaperCompany employee who prepared the report was given accessto ALP’s books and records and accompanied ALP employ-ees to logging camps. Id. He presented the report to a meetingof the ALP Log Committee and the report was circulated toALP officers and managers. Id. Based on those facts, we held“there can be little question that [the employee] was ‘autho-rized’ by ALP to make statements regarding the entire scopeof ALP’s woods operations.” Id.


In Reid Brothers, ALP authorized declarant—the Oji PaperCompany employee—to produce a report of ALP’s woodsoperations, including the price structure for the purchase oflogs, to further ALP’s knowledge of how best to conduct itsbusiness. Similarly, Bonds authorized Anderson to deal withBALCO to produce test results of Bonds, to further Bonds’sknowledge of how best to modify his nutritional intake. OjiPaper Company employee’s statements regarding the pricestructure of ALP’s purchase of logs were necessary to makehis report accurate. Anderson’s statements regarding Bonds’sname were necessary to make his report of Bonds’s testresults accurate. In Reid Brothers, it was not necessary for theplaintiffs who offered into evidence the Oji Paper Companyemployee’s statements to show ALP specifically authorizedOji Paper Company employee’s statements regarding theprice structure of log purchases; it was sufficient that ALPauthorized a survey of its own log operations from which saidprice information came. Here, Bonds authorized a review ofhis nutritional levels and Anderson’s statements in further-ance of accurately assessing his nutritional levels werethereby impliedly authorized.

With these cases in mind, I turn to the district court’s analy-sis of whether Anderson’s statements are admissible underRule 801(d)(2)(C).

I begin with the district court’s most serious error, whichpervades its analysis of the admissibility into evidence ofAnderson’s statements—that it focused solely on whether thenature of Anderson’s role as a trainer authorized him to speakon Bonds’s behalf. In doing so, the district court overlookedthe undisputed evidence as to the full nature of Anderson’sTask with BALCO. So does the majority. See Majority Op. at8567-68. Anderson’s formal label as a trainer should nottrump the actual function he performed for Bonds. For Ander-son to accomplish his Task successfully, it was necessary forAnderson to identify the samples in a manner that would laterallow BALCO accurately to report test results back to Ander-


son and for Anderson to know the results were of Bonds’ssamples, so he could accurately report to Bonds his BALCOresults.

But the district court did not look to the full Task; it stated:“[t]he rationale for Rule 801(d)(2)(C) simply does not applyhere. If a party authorizes a declarant to speak on his behalfand the declarant makes an admission, Rule 801(d)(2)(C) pro-vides a mechanism for that admission to be used against theparty. Trainers, unlike lawyers, brokers, sales personnel, andthose with supervisory responsibilities, are not generallyauthorized to speak for principals.” 2009 WL 416445, at *5.The district court’s standard—that trainers are not generallyauthorized to speak for their trainees—is correct, but only ifread in isolation. The district court does not explain how thatgeneral standard applies to this particular case. We are left toguess why the district court reached the conclusion thatAnderson was not authorized based on this general standard.

One possible interpretation of the district court’s opinion isthat the district court simply ignored the word “generally” inits statement of the law. If the district court proceeded with itsanalysis on the grounds that “trainers . . . are not [ ] authorizedto speak for principals,” that is a ruling on a question of law;we then review that ruling de novo. See Hinkson, 585 F.3d at1262. The holding that trainers are not authorized to speak fortrainees is incorrect because no rule of law prohibits a traineefrom authorizing his trainer to speak for the trainee. It is trueonly that the duties of a trainer do not usually include makingstatements to third parties. Furthermore, this holding is incor-rect because a person may be authorized to speak on behalfof a principal independently from that person’s role as atrainer. The fact that Anderson was also Bonds’s trainershould not preclude the district court from holding that Bondsauthorized his friend Anderson to perform the Task. Forinstance, if Bonds had told a John Smith to speak on hisbehalf at a press conference, and John Smith happened to bethe batboy for the San Francisco Giants, John Smith’s profes-


sion as batboy would not undercut Bonds’s authorization ofSmith to speak on his behalf, although batboys as a group andprofession are not usually thought of as ballplayers’ spokes-men.

The other possible interpretation of the district court’s opin-ion is that the district court applied the correct standard oflaw, but found the facts on this record were inadequate to fitAnderson’s statements into an exception to the general stan-dard that trainers are not generally authorized to speak onbehalf of their trainees. This is an application of the law to thefacts, which we review for clear error under Hinkson, 585F.3d at 1262. The district court clearly erred because its appli-cation was illogical; all reasonable inferences that may bedrawn from facts in the record show that Anderson was autho-rized to speak, not as Bonds’s trainer, but as the person Bondsentrusted to complete the Task. It was clear error for the dis-trict court to limit its consideration to Anderson’s role as atrainer, without considering what facts established his impliedauthority to speak for Bonds: the nature of the Task entrustedto Anderson by Bonds.

Earlier in the district court’s opinion, it described the natureof the task Anderson was required to perform as “the deliveryof defendant’s samples to BALCO.” 2009 WL 416445, at *5.This is a finding of fact, as to what constituted Anderson’stask, which we review for clear error. Hinkson, 585 F.3d at1263. But, the district court did clearly err in finding Ander-son’s task was mere delivery of samples to BALCO becausethe record shows Anderson’s Task included far more—fromprocuring the vials to reporting the results to Bonds—as dis-cussed earlier in this dissent. See discussion supra p. 8585-86.

The district court committed another error of law in holdingAnderson was not authorized to identify Bonds by namebecause Bonds provided Anderson with blood and urine sam-ples in response to requests from Anderson, rather than hadthe request originated from Bonds. The district court stated:


“[Bonds’s] testimony establishes that he provided the samplesin response to a request from Anderson, not that defendanthired Anderson to perform this task.” Bonds, 2009 WL416445, at *5. Although the district court’s statement isphrased as a finding of fact, the district court implicitly holdsthat, as a matter of law, admission into evidence of statementsunder Rule 801(d)(2)(C) requires that (1) the person authoriz-ing the speaker must not be acting in response to a requestfrom the speaker himself and (2) that authorization is synony-mous with hiring a speaker to perform a task. These are legalissues that we review de novo. There is no support for arequirement that an impliedly authorized declarant cannotsuggest the task in the first place. In Reid Bros., we did statethat the report admitted under Rule 801(d)(2)(C) was con-ducted at the request of the company’s CEO, but I see no rea-son why our analysis would have been different if Oji PaperCompany of Japan had approached ALP first and offered todraft the report, so long as the principal assented to the declar-ant’s performance of the task. See 699 F.2d at 1306. The ref-erence in Reid Bros. to the company’s request shows only thatparty-ALP actually authorized the report and that the consul-tant did not write it spontaneously on his own. Here, Bonds’sown testimony shows he authorized Anderson to procureBALCO testing of Bonds’s bodily fluids; Bonds impliedlyauthorized Anderson to identify the samples to insure theaccuracy of the test results as to his bodily fluids. The onlydeterminative factor is whether Bonds agreed to Anderson’ssuggestion, which he did.15

15The fact that Anderson suggested the task might be relevant if therewere some dispute over the scope of the task. In that case the issue of whoinitially suggested the task might be probative of whether there was ameeting of the minds as to the scope of Anderson’s authority. Here, how-ever, we consider the scope of the task solely from Bonds’s own testimonyand it is Bonds who claims he entrusted Anderson with the Task. There-fore, there is no dispute over the scope of the task and we may properlydecide solely from Bonds’s testimony to the grand jury what statementswere impliedly authorized as part of that Task.


The majority attempts to distinguish Iaconetti on the samegrounds. Majority Op. at 8567-68. Whereas defendant-Iaconetti demanded a bribe, it was Anderson who raised thepossibility of testing Bonds’s blood. But, the majority missesthe point of Iaconetti. Iaconetti gave Lioi, the company presi-dent, the task of getting the bribe money from the company.To accomplish that task, Iaconetti impliedly authorized Lioito pass his demand for money to the people who controlledthe company’s money, including witness-Goldman. Here,Bonds gave Anderson the task of testing Bonds’s bodily flu-ids and reporting the results. Just as it was necessary for Lioito pass on Iaconetti’s demands to the people in the companywho could pay the money, it was necessary for Anderson toidentify the source of the bodily fluids to the laboratory thatwould test the samples. Otherwise, Anderson could notachieve an accurate completion of the Task of testing andreporting.

Moreover, the majority simply has its facts wrong when itwrites the steroid testing was all Anderson’s idea, MajorityOp. at 8567-68: Bonds testified it was his idea to have hisblood tested for steroids at BALCO after Major League Base-ball collected his blood on May 29, 2003. Bonds wanted tokeep Major League Baseball honest. The majority contendsthis fact, and presumably anything that occurred after 2002,is not relevant, but does not explain why. Evidence that Bondsexpected Anderson to be able to test his blood for steroids,and that he would initiate a request for such testing, is proba-tive of his entire relationship with Anderson, where there isnot a scintilla of evidence the relationship between Andersonand Bonds changed after 2002. To the contrary, it was in2003, after the World Series of 2002, and when Bonds hit 73home runs, that Bonds bestowed a World Series ring and a$20,000 bonus on Anderson.

There is likewise no support for the district court’s implicitholding that a party must have hired a speaker for the speak-er’s statements to be authorized. “To hire” suggests payment.


See Webster’s Third New International Dictionary 1072(1965) (Hire: “To engage the personal services of for a fixedsum: employ for wages”). But payment is not a requirementunder Rule 801(d)(2)(C). Iaconetti, 540 F.2d at 575-76 (find-ing statements were authorized even though Iaconetti did notpay Lioi to relay his bribe money demand to Lioi’s businessassociates).

Next, the district court clearly erred when it found Bonds’s“equivocal answers about the number of samples [Bonds]gave Anderson [were] not sufficiently certain to establishAnderson had authority to speak with regard to the particularsamples at issue here.” Bonds, 2009 WL 416445, at *5. Themajority adopts and repeats this error. Majority Op. at8568-69. Without further analysis, this is simply a non-sequitur. Neither the district court nor the majority explainwhy Bonds’s uncertain memory as to the number of samplesgiven cuts against a finding that he authorized Anderson. Assuch, the district court clearly erred by misapplying the lawto these facts because it is illogical to hold Anderson’s state-ments are not admissible into evidence based on a non-sequitur.

I can imagine one situation where the number of timesBonds authorized Anderson to perform the Task would mat-ter. If Bonds testified he gave Anderson samples on onlythree occasions, and Anderson submitted to BALCO sampleson four occasions—samples that he claimed were Bonds’s—then there would be some reason to suspect Anderson was notauthorized to make identifying statements on one occasion. Inthat situation, the district court might not be able to identifyand rule out which test was unauthorized, and therefore itmight be reasonable to exclude all of Anderson’s identifyingstatements.

But that situation is not relevant here. Not only was a “threeof four” situation not discussed by Bonds before the districtcourt or this court, but the record does not provide any basis


for a claim that Anderson delivered more samples than Bondsauthorized to be tested. Remember, the record is clear andundisputed that each sample was gathered from Bonds’s doc-tor at Bonds’s home contemporaneously, in Bonds’s presence,with Bonds donating the sample. As Bonds testified regardingthe collection of his blood and urine samples: “[W]e just gaveit to Greg [Anderson].” The factual record is without dispute:Each and every sample was collected with Bonds’s coopera-tion and consent. There is not a word in the record that Ander-son handled anybody else’s samples, or what possiblemotivation he could have had to frame Bonds with another’sblood. Just the opposite. Anderson has been willing to stay injail for an extended period for contempt of court to avoid tes-tifying against Bonds.

The district court also erred—and here the majority agrees—on an issue of law in holding Anderson’s statements werenot an “admission” because the statement was not againstAnderson’s interest. Rule 801(d)(2)(C) does not require thestatement to be against the declarant’s interest. There is norequirement an authorized statement must be against the inter-est of either the speaker or the principal. See, e.g., Reid Bros.,699 F.2d at 1306. I concede this error would not alone compelus to reverse the decision below, but it is cumulative with thenumerous errors of law and fact in the district’s court deci-sion.

The majority adds a whole new erroneous contention to thedistrict court’s errors: it relies on the notion that Bonds wasjust “accommodating the wishes of a friend.” Majority Op. at8568. Perhaps I spend my time in the wrong social circles, butin my experience “accommodating the wishes of a friend” hasnever quite included giving friends my blood or urine; ascrewdriver or a ride if his car breaks down, sure, but not vialsof my bodily fluids. But, even if giving away blood and urineis something now done among friends, I do not see how “ac-commodating the wishes of a friend” is necessarily exclusiveof “providing Anderson with the authority to speak.” Id.


(internal quotation marks omitted). The majority suggestsBonds had nothing to gain from Anderson’s Task. That is flatwrong: Bonds testified he gave Anderson his blood and urinesamples for the ostensible reason that he expected the testresults to help him improve his nutrition. Bonds testified: “Iwas just baffled like, you know, should have been doing thisa long time ago, you know, drawing blood, finding out whatyou’re lacking and stuff, you know, keep your energy up ifyou’re this or that.” Later, Bonds expected the test results tokeep Major League Baseball honest when it performed itsunannounced steroid test.

Finally, the majority contends Anderson was not impliedlyauthorized to identify Bonds’s samples because Andersoncould have provided BALCO the samples anonymously. Themajority does not rely on any authority for its contention,which is inconsistent with Iaconetti and Reid Bros.; in neitherof those cases did the court rule out all hypotheses as to howthe statements could have been made, but were not. In Iaco-netti, for example, the speaker, Lioi, told his business partnersthat he needed to collect company money to pay Iaconetti’sbribe. Although the Second Circuit found those statementswere necessarily authorized, the majority’s analysis herewould compel a different result. Lioi could have lied to hisbusiness partners about the need for the money. He couldhave said it was needed for an unexpected emergency—e.g.,that a valued employee needed uncovered medical treatment.This type of second-guessing whether a statement is strictlynecessary would eliminate the admissibility of all statementsimpliedly authorized, because whenever the party authorizinga statement does not draft the exact words of a statement,another formulation of the statement is possible. Instead,Iaconetti and Reid Bros. hold that statements may beimpliedly authorized so long as they are made to complete atask in the ordinary and usual manner.

The assertion that Anderson could provide Bonds’s sam-ples anonymously is also unsupported on the record. It is not


evident that BALCO would have tested random samples pro-vided by Anderson, without the cachet of Bonds’s name.Moreover, Bonds testified that he did not request or expectAnderson to keep his identity confidential. To the contrary,Bonds revealed his identity when he met with the CEO ofBALCO to discuss his testing and when he publicly spokeabout it in an advertisement for BALCO.

If Anderson’s sole task were to deliver the samples toBALCO, I would agree with the district court’s determinationas to lack of authorization of Anderson to speak for Bonds toidentify the donor of the samples: couriers and postal workersare not impliedly authorized to make statements as to the par-cel’s provenance on behalf of the people from whom theytake parcels and make deliveries. See Restatement (Third) ofAgency § 1.01 cmt. h (2006). It is not necessary for a courierto identify the source of a letter or package. Indeed, in mostcases the courier has no personal knowledge who deliveredthe goods to the office for the final delivery. But, as the ele-ments of Anderson’s Task reveal—when that Task is at lastfully described—Anderson was much more than a courier. Hewas responsible for dealing with BALCO under highly spe-cific conditions of delivery—conditions set by Bonds (sam-ples to be picked up at Bonds’s home) and BALCO (samplesto be tested within thirty minutes of extraction), but not set byAnderson. He was also responsible for reporting back theresults of Bonds’s tests. Bonds testified: “[Greg Anderson]came in with the vials, my doctor drew the blood, we justgave it to Greg. Greg went down there and dealt with it”(emphasis added). The authority to deal with a third party isa classic element of authorizing a person to act for another.16

16Admittedly, the distinction between an authorized speaker under Rule801(d)(2)(C) and an agent under Rule 801(d)(2)(D) appears blurry whendiscussing “authorization.” These roles are distinguished, however, by thefact that an authorized speaker under Rule 801(d)(2)(C) is not necessarilysubject to the other requirements necessary for agency under Rule801(d)(2)(D).


See Restatement (Third) of Agency § 1.01 cmt. c (“Authors,performers, and athletes often retain specialized agents to rep-resent their interests in dealing with third parties . . . . [A]relationship of agency always contemplates three parties—theprincipal, the agent, and the third party with whom the agentis to deal.” (internal quotation marks omitted) (emphasisadded)).

The district court’s errors of law and fact require reversal.In deciding an interlocutory appeal, we will reverse an evi-dentiary ruling for abuse of discretion only if such nonconsti-tutional error more likely than not would affect the outcomeof the case. See Hinkson, 585 F.3d at 1282. A preponderanceof the evidence proves Bonds authorized Anderson to performthe task, which impliedly authorized Anderson to identify theorigin of the samples he delivered to BALCO. The districtcourt’s incorrect reading of the law and clear errors of factaffected and effected its erroneous decision. Therefore, Iwould reverse the district court’s decision not to admit Ander-son’s statements under Rule 801(d)(2)(C).

IV. Conclusion

The district court’s errors in labeling Anderson’sstatements—identifying blood and urine samples handed byAnderson to Valente at BALCO as Bonds’s—as hearsay con-travene Rules 801(d)(2)(C) (authorized admissions) and801(d)(2)(D) (statements of an agent related to the subject ofhis agency). As to both Rules, the district court has erred asto (1) the correct legal standard to be applied, and (2) its find-ings of fact.

First, upon the more commonly visited hearsay exception,Anderson’s statements to Valente: (1) were made whileAnderson was Bonds’s agent, in dealing with BALCO for theproduction of accurate test results of Bonds’s bodily fluids;and (2) were related to the scope of his agency—to help


Bonds get accurate readings of his nutritional levels. See Rule801(d)(2)(D).

Second, upon the less common hearsay exception, Ander-son’s statements to Valente were impliedly authorized byBonds as a normal and necessary action for the procurementof accurate test results of Bonds’s bodily fluids. See Rule801(d)(2)(C).17

We should reverse the district court’s decision to excludeAnderson’s foundational statements regarding the provenanceof the blood and urine samples that Anderson brought toBALCO. Those statements are admissible in evidence underboth Rules 801(d)(2)(C) and 801(d)(2)(D). But, even if I amwrong to think the evidence is conclusive in the government’sfavor, it is at least strong enough to merit remanding this issueto the district court to decide whether, under the correct stan-dard of law, Anderson was Bonds’s agent, or whether Bondsauthorized Anderson to perform his Task.

Although we should reverse as to Anderson’s statements,that does not mean we should hold the BALCO logs and testresults admissible in evidence at this point. Bonds raisedbefore the district court several other reasons why that evi-dence should not be admitted in evidence. The district courtdid not reach those issues because it decided that Anderson’sstatements were inadmissible. Thus, if this case wereremanded, the district court would have to decide whether theevidence proffered by the government is admissible in evi-dence if Anderson’s statements are admissible in evidence.

17Finally, like the majority, I do not think the district court erred indeciding the government’s evidence was not admissible under the businessrecords exception, Rule 803(6), or the residual exception, Rule 807.


Documents

FOR PUBLICATIONcdn.ca9.uscourts.gov/datastore/opinions/2010/06/11/09...2010/06/11 · The district court held that FRE 807, the residual exception, did not apply. The court observed